| Kerrigan v Kerrigan |
| 2010 NY Slip Op 01929 [71 AD3d 737] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Peter C. Kerrigan, Appellant, v Cindy A. Kerrigan,Respondent. |
—[*1] Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Jacqueline Harounian ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of (1) a judgment of the Supreme Court, Suffolk County (Kent, J.), datedApril 28, 2008, and (2) an amended judgment of the same court dated February 19, 2009, which,upon decisions of the same court dated January 18, 2008, and November 28, 2008, respectively,made after a nonjury trial, (a) directed the plaintiff to pay the defendant a distributive award inthe principal sum of $409,779.95, representing 35% of the value of the appreciation of theplaintiff's interest in his business during the marriage, (b) awarded the defendant child support inthe sum of $1,442.31 per week, maintenance in the sum of $1,500 per week for a period of fiveyears commencing on January 18, 2008, an attorney's fee in the sum of $90,428.41, and anadditional attorney's fee in the sum $26,025.79, for fees incurred after the submission of aposttrial brief, and (c) failed to award him credits for martial funds allegedly depleted by thedefendant, and for a mortgage on the parties' Florida condominium he allegedly satisfied withseparate funds.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment; and it is further,
Ordered that the amended judgment is modified, on the law and the facts, (1) by deleting theeleventh decretal paragraph thereof awarding the defendant an additional attorney's fee in thesum $26,025.79, and (2) by adding a provision thereto awarding the plaintiff a credit in the sumof $52,926.67; as so modified, the amended judgment is affirmed insofar as appealed from, andthe matter is remitted to the Supreme Court, Suffolk County, for a hearing on the defendant'sapplication for an additional attorney's fee, and for the entry of a second amended judgmentthereafter; and it is further,
Ordered that one bill of costs is awarded to the defendant.
Under the circumstances of this case, the Supreme Court providently exercised its discretionin awarding the defendant 35% of the value of the appreciation of the plaintiff's interest in hisbusiness during the marriage (see Quinnv Quinn, 61 AD3d 1067, 1069-1070 [2009]; Schorr v Schorr, [*2]46 AD3d 351 [2007]; cf. Higgins v Higgins, 50 AD3d 852 [2008]). Moreover, therecord supports the Supreme Court's determination of the value of the plaintiff's interest in thebusiness, which was "within the range of the testimony presented" and rested "primarily on thecredibility of expert witnesses and their valuation techniques" (Wasserman v Wasserman, 66 AD3d880, 882 [2009]; see Peritore vPeritore, 66 AD3d 750 [2009]; Ivani v Ivani, 303 AD2d 639, 640 [2003];L'Esperance v L'Esperance, 243 AD2d 446, 447 [1997]).
The award of maintenance to the defendant in the sum of $1,500 per week for a period offive years was appropriate (seeKriftcher v Kriftcher, 59 AD3d 392, 393-394 [2009]). The plaintiff's contention that theSupreme Court engaged in "double dipping" with respect to the award of maintenance is withoutmerit, as the plaintiff's business constitutes a tangible, income-producing asset, rather than anintangible asset (see Keane vKeane, 8 NY3d 115, 119 [2006]; Griggs v Griggs, 44 AD3d 710, 713 [2007]).
The plaintiff's contention that the annual amount of durational maintenance payments shouldhave been deducted from his income in computing the amount of child support is without merit(see Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]; Smith v Smith, 1 AD3d 870, 873[2003]).
The Supreme Court providently exercised its discretion in awarding the defendant anattorney's fee in the sum of $90,428.41, in light of the relative financial circumstances of theparties, the relative merits of their positions at trial, and the plaintiff's tactics in unnecessarilyprolonging the litigation (see Domestic Relations Law § 237 [a]; DeCabrera vCabrera-Rosete, 70 NY2d 879 [1987]; Schek v Schek, 49 AD3d 625, 626 [2008]; Levy v Levy, 4 AD3d 398,398-399 [2004]; cf. Griggs v Griggs, 44 AD3d at 714).
However, the Supreme Court erred in awarding the defendant an additional attorney's fee inthe sum $26,025.79 without conducting a hearing (see Sheikh v Basheer, 34 AD3d 670 [2006]; Rienzi v Rienzi, 23 AD3d 447,449 [2005]). Moreover, the plaintiff established that he used separate funds of $52,926.67 to payoff the mortgage on the parties' condominium in Fort Myers Beach, Florida, and he was entitledto a credit for that amount.
The defendant's contention that the Supreme Court failed to direct the plaintiff to provide herwith health insurance coverage cannot be considered because she did not cross-appeal from theamended judgment.
The parties' remaining contentions are without merit. Dillon, J.P., Florio, Leventhal andRoman, JJ., concur.